required of fourth degree members of a fraternal Ralph H. Smith, of Santa Cruz, and Aaron organization, although the publication was in- L. Sapiro, of San Francisco, for appellant. tended to apply only to persons who were candidates for public office at the time, it was libel- U. S. Webb, Atty. Gen., and Frank L. Guerous as to all members of the order of the de- ena, Deputy Atty. Gen., for the People. gree named, since a libel may be upon a class of persons if the tendency of the publication is to stir up riot and disorder.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. § 404; Dec. Dig. 145.] 4. CRIMINAL LAW

TIONS-REQUESTS.

KERRIGAN, J. The defendant was charged by information with the crime of libel, and was tried and convicted. This appeal is 824-TRIAL-INSTRUC- from the judgment of conviction, and from an order denying defendant's motion for a new trial.

In a prosecution for libel, where no instruction was requested or given on the subject of privileged communication, the omission to Upon his arraignment the defendant movspecifically instruct the jury as to defendant's ed the court to set aside the information upcontention that, since his publication related on the ground that he had not been legally to an election, it was privileged under Pen. Code, § 256, was not ground for reversal, since, committed for trial by a magistrate. as the jury are judges of both the law and the motion was denied. Such denial is the first facts in criminal libel cases, the defendant of the grounds urged by the appellant for the should have requested a specific instruction if

The

he desired to have the jury more directly advis-reversal of the judgment. ed as to his contention in regard to privilege [1] Section 872 of the Penal Code prothan it was by the evidence or argument of counsel.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. 824.]

5. LIBEL AND SLANDER 148 CRIMINAL PROSECUTION-PRIVILEGE-LIBEL OF CANDIDATE FOR OFFICE-STATUTE.

Pen. Code, § 256, providing that a communication made to a person interested in the communication by one who was also interested, or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication, did not render privileged a libelous publication in a newspaper impeaching the loyalty of citizens who were candidates for public office, since a candidate for office is as much entitled to protection from defamation as any other citizen, and a public journal or individual who indulges in defamatory assertions in respect to him is equally responsible for his acts with those committing the same offense against private individuals.

[Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. §§ 407-411; Dec. Dig.

vides that, if it appears upon an examination that a public offense has been committed, and there is sufficient cause to believe that the defendant is guilty thereof, the magistrate must make or indorse on the complaint an order, signed by him, to that effect. Under the authorities, in so far as the section requires that the order shall be indorsed upon the complaint, it may be regarded as directory; and it is sufficient if the indorse ment be reduced to writing and signed by the magistrate and entered upon his official dock. et, or upon the complaint or deposition. Peo ple v. Tarbox, 115 Cal. 57, 46 Pac. 896; People v. Wilson, 93 Cal. 377, 28 Pac. 1061. In this case the order of commitment was neither indorsed upon the complaint or deposition, nor was the entry of such order in the magistrate's docket, made by his stenographer, signed by the magistrate until after the motion to dismiss the information was filed. In other words, the record discloses that prior to the filing of the motion the magistrate did nothing more at the conclusion of the preliminary hearing than to announce In a prosecution for libel, where the court, and cause to be entered in his docket an in the presence of the jury, stated that the pub-order that the defendant should be held to lication might fairly be interpreted to state that all persons admitted to the fourth degree of a fraternal order had taken the published oath, which was libelous, and then explained to the While it is no doubt true that the terms jury that the remarks were not directed to them, of section 872 of the Penal Code should be but solely to counsel incidentally to the denial of a motion to dismiss, repeatedly admonishing complied with before the district attorney is the jury thereafter that they were not in any warranted in filing an information against a way to be influenced in reaching their verdict | person, still it does not appear that the deby the court's observations, that they were fendant was deprived of any substantial the sole judges of the facts, and that the interpretation of the language of the publication was right by reason of the omission of the magis a matter for them, the error in the court's state-trate. If the motion had been granted, an ment was harmless. other preliminary examination could have [Ed. Note. For other cases, see Criminal been held under the provisions of sections Law, Cent. Dig. §§ 3114-3123; Dec. Dig. 997-999 of the Penal Code (Ex parte Baker, 11662.] 88 Cal. 84, 25 Pac. 966; People v. Breen, 130 Appeal from Superior Court, Santa Cruz Cal. 72, 62 Pac. 408), wherein the omission County; W. A. Beasly, Judge.

148.]

6. CRIMINAL LAW 11661⁄2 ERROR HARMLESS ERROR COURT.

APPEAL AND
REMARK OF

Henry S. Turner was convicted of libel, and from the judgment and an order denying his motion for new trial, he appeals. Judgment and order affirmed.

answer in the superior court to a charge of libel, and fixing the bail.

now complained of could have been supplied Under the provisions of section 42, art. 6, of the Constitution, it not appearing that the defendant was injured by the failure of the magistrate to make the required indorsement

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

upon the complaint before the information | the Roman Catholic Church, he will no longer was filed, we cannot now, after a fair trial, rest easily in his present peaceful slumber." set aside the judgment of conviction because of such omission.

The information charges that the defendant, the proprietor and publisher of a certain newspaper called the "World-Issue," committed the crime of libel, in that on the 22d day of August, 1914, he unlawfully and wrongfully caused to be printed and published in said paper in Santa Cruz county, of and concerning the prosecuting witnesses, who lived in that county, and who were members of the fourth degree of that certain fraternal organization known and called the Knights of Columbus, the following article: "Can you vote for a man for public office who subscribes to the following?

"Knights of Columbus Oath.

"(Extracts-4th Degree.) "I do now denounce and disown any allegiance as due to any heretical king, prince or state, named Protestant or Liberals, or obedience to any of their laws, magistrates or officers. "I do further promise and declare that I will have no opinion or will of my own or any mental reservation whatsoever, even as a corpse or cadaver (perinde ac cadaver), but will unhesitatingly obey each and every command that I may receive from my superiors in the militia of the Pope and of Jesus Christ.

""That I will in voting always vote for a Knight of Columbus in preference to a Protestant-especially a Mason-and that I will leave my party to do so; that if two Catholics are on the ticket I will satisfy myself which is the better supporter of Mother Church and vote accordingly.

""That I will not deal with or employ a Protestant if in my power to deal with or employ a Catholic. That I will place Catholic girls in Protestant families of the heretics.

""That I will provide myself with arms and ammunition that I may be in readiness when the word is passed, or I am commanded to defend the church as an individual or with the militia of the Pope.'

It would seem that a mere statement of the published oath, coupled with an averment that it was false and malicious, would by sufficient to bring the publication within the terms of section 248 of the Penal Code. It would be a severe reflection upon the condition of the law of libel if it permitted to go uncondemned the publication of articles such as this, if false. It is clear that the published oath, if believed by the community to be taken by the members of the fourth degree of the Knights of Columbus, would have a tendency to expose those persons to hatred, contempt, or ridicule. While the publication may not, as claimed by the defendant, directly impeach their honesty and integrity, it does in a most direct and vital way assail their loyalty as citizens by charging them with the taking of an obligation which is in itself a violation of their oath of allegiance and of the essential duties and bonds of American citizenship, and thus in a general sense impeaches their reputations, and exposes them to those attitudes of public feeling described in the section of the Penal Code.

[3] At the time of the publication of the article in question it appears from the record that there was a political campaign in progress in Santa Cruz county, where the article was published; and perhaps it is fair to infer from the record that some of the candidates for election were members of the fourth degree of Knights of Columbus, but none of the prosecuting witnesses were such candidates. With the record in that condition defendant contends: First that the publication was not of and concerning the prosecuting witnesses; and, secondly, that the alleged libelous matter applies to a class or generally to all of the members of the fourth degree in the fraternal order mentioned, and therefore has no individual application, and that for these reasons the judgment of conviction cannot stand.

While the published matter may have been intended to apply only to persons who were candidates for office at that election, nevertheless, in terms and in effect, it refers to each and every member of the order of the degree named. It is undisputed that the publication was false, that the prosecuting witnesses were members of the society of the degree in question, and the inevitable conclusion to be drawn from the article is that "To the quiet, law-abiding, liberty-loving every member of the order of the fourth de American citizen it is almost unbelievable that gree had taken and subscribed to the publishany fellow citizen or body of them can serious- ed oath. The article asperses the character ly undertake or hope to overthrow our present of such members, and ascribes to them base form of government and replace it with an abso- and dishonest motives, and as to them its lute monarchy. It is still more unbelievable that such a proposed monarchy should be dom- publication constituted criminal libel, whethinated by a foreigner, and that such a change er at that time a candidate for public office be brought about under the guise of religion. Yet if such a citizen will but open his eyes to the condition existing under his very eyes, and

or not. The points presented by defendant might be urged with some force in a civil

not believe they are good in a criminal pros- | Am. Rep. 757; King v. Root, 4 Wend. (N. Y.) ecution for libel, for, as is said in the case of State v. Brady, 24 Pac. 948, 949:

"The law is elementary that the libel need not be on a particular person, but may be upon a family or a class of persons if the tendency of the publication is to stir up riot and disorder and incite to a breach of the peace. It is obvious that a libelous attack upon a body of men, though no individual may be pointed out, may tend as much or more to create a public disturbance as an attack on one individual, and a doubt has been suggested whether the fact of numbers does not add to the enormity of the act.'"

This statement is a correct exposition of the law and of the causes of its existence. People v. Crespi, 115 Cal. 50, 46 Pac. 863.

[4, 5] The defendant next contends that the court erred in denying his motion for a new trial. He argues that the record supports the theory that the publication was made for the purpose of enabling the voters at the approaching election to cast their ballots more intelligently, and that therefore, under the terms of section 256 of the Penal Code, the publication must be deemed a privileged communication. That section provides:

"A communication made to a person interested in the communication, by one who was also interested or who stood in such relation to the former as to afford a reasonable ground for supposing his motive innocent, is not presumed to be malicious, and is a privileged communication."

113, 21 Am. Dec. 102; McAllister v. Detroit Free Press Co., 76 Mich. 338, 43 N. W. 431, 15 Am. St. Rep. 318 and cases noted. In the present case it is not disputed that the publication was false. It was therefore not privileged.

[6] During the trial of the case, in denying a motion made by the defendant to dismiss, the court gave his reasons therefor in the presence of the jury, and, among other things, said that, examining the publication by its four corners as one would a contract, it might fairly be interpreted to state that all persons who were admitted to the fourth degree of the Knights of Columbus had taken the published oath; "in fact, the court thinks the paper is fairly interpreted to mean just that." This remark, defendant insists, constituted error on the part of the learned trial judge, for which the case must be reversed. At the time, upon attention being called to the apparent inadvertence, the court explained to the jury that the remarks were not directed to them, that they were addressIed solely to the counsel in the case, and made incidental to the denial of the motion before the court. Subsequently in the instructions the jury were repeatedly admonished that they were not to be in any way influenced in reaching their verdict by the observations of the court, that they were the sole judges of the facts in the case, and that the interpretation of the language of the publication was a

will, of course, be presumed in this behalf that the jury followed the plain admonition of the court, and hence that in the matter suggested the defendant suffered no injury.

Assuming for the moment that this publication comes within the privilege of that section, still we are satisfied that this case should not be reversed upon the ground stat-matter to be wholly determined by them. It ed. No instruction was requested or given upon the subject of privileged communications of the sort defined by that section, but the record shows that the defendant was Other points made by the appellant relate relying upon this form of privilege in presenting his defense, and, since the jury are the to the admission or rejection of evidence, and judges of both the law and the facts in crim- to instructions given to the jury. We have inal libel cases, the defendant should have re-examined them, but without finding therein quested the specific instruction if he desired to have the jury more directly advised as to his contention than it was by the evidence or argument of counsel. We are further satisfied, however, that section 256 of the Penal Code has no application to cases of this character. Whatever the rule may be in other jurisdictions, it has been expressly decided in this state that a candidate for office is as

much entitled to protection from defamation as any other citizen, and that a public journal or an individual who indulges in defamatory assertions about candidates for office is equally responsible for his acts with those who commit the same offense against private individuals, and that such libelous matter published against a candidate for a public office is not a privileged communication. Jarman v. Rea, 137 Cal. 341, 350, 70 Pac. 216; Edwards v. San Jose Pr. & Pub. Co., 99 Cal. 431, 34 Pac. 128, 37 Am. St. Rep. 70; Aldrich v. Press Pr. Co., 9 Minn. 133 (Gil. 123), 86 Am. Dec. 84; Sweeney v. Baker, 13 W. Va. 158, 31

anything upon which to ground appellant's
argument for a reversal of the judgment.
The judgment and order are affirmed.

concur:

We
ARDS, J.

LENNON, P. J.; RICH

(28 Cal. A. 796)

CARTER v. HOLT et al. (Civ. 1766.) (District Court of Appeal, Second District, California. Nov. 16, 1915. Rehearing Denied by Supreme Court Jan. 13, 1916.)

1. TRUSTS 95-CONSTRUCTIVE TRUST-CONTRACT AS SUBJECT-MATTER.

Where, by fraud, defendant obtained money from plaintiff and therewith paid part of the purchase price of an automobile on a contract of sale to him on the installment plan, plaintiff could impress a constructive trust, arising from defendant's fraud, upon such contract, since in proper case there is no reason why a contract or lease, as well as any other property, may not be subject to a constructive trust.

[Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 145-147; Dec. Dig. 95.]

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. TRUSTS 371 GENERAL DEMURRER CONSTRUCTIVE TRUST.

In an action to impress a constructive trust upon a contract of sale of an automobile on the installment plan, the allegation of the complaint that an assignment was made to a defendant by the defendant who fraudulently obtained money from plaintiff without consideration "after knowledge by (the assignee) that said automobile had been purchased with plaintiff's money and funds," was sufficient, in the absence of special demurrer, as alleging that prior to the assignee's acquisition of the automobile and contract of purchase he had knowledge of plaintiff's rights.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 588-599; Dec. Dig. 371.]

3. TRUSTS 356-CONSTRUCTIVE TRUST-NOTICE TO ASSIGNEE OF RES-EFFECT.

Where the assignee of a contract of sale of an automobile on the installment plan took the same with knowledge that it had been paid for with funds fraudulently procured from plaintiff, his position as to money loaned or paid on the contract to the assignor thereof was that of a second lienor, subordinate to the rights of the defrauded party.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 529-538; Dec. Dig. 356.] 4. ATTORNEY AND CLIENT

that a new deal between the seller, the original contractor for the car, who had paid part of the price with money fraudulently obtained from plaintiff, and his assignee, purporting to cancel the assigned contract and to make a new contract of sale direct with the assignee, was a mere subterfuge.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. 88 600-603; Dec. Dig .372.]

Appeal from Superior Court, Los Angeles County; Chas. Monroe, Judge.

Action by Grace M. Carter against Ira W. Holt and others. From a judgment for plaintiff, and an order denying a motion for new trial, defendant Linney appeals. Judgment and order affirmed.

Robt. T. Linney and Kendrick & Ardis, all of Los Angeles, for appellant. Ralph W. Schoonover and Harriman, Ryckman & Tuttle, all of Los Angeles, for respondents.

SHAW, J. The complaint shows that by means of fraud and false representations defendant Holt obtained from plaintiff the Sum of $1,151.37; that he entered into a contract with an automobile company for the purchase of an automobile for the sum of $1,375, and of the money so fraudulently obtained from plaintiff he paid thereon $625;

88 - RIGHT OF ATTORNEY TO CONDUCT OWN CASE. Where an attorney who was sued appeared in court by an attorney of record who conducted the case to a point where defendant proposed to cross-examine plaintiff's witness, it appearing that he would be a witness in his own behalf, the court properly denied him the right to cross-that thereafter, and before the filing of the examine.

[Ed. Note.-For other cases, see Attorney and Client, Cent, Dig. §§ 161-163; Dec. Dig. SS.] J. APPEAL AND ERROR 1170 REVIEW HARMLESS ERROR.

complaint herein, Holt was arrested, charged with the embezzlement of said sum of money so procured from plaintiff; that he employed defendant Linney as attorney to Under Const. art. 6, § 41⁄2, providing that defend him upon said charge of embezzleno judgment shall be set aside or new trial ment, and to whom he assigned said contract granted for any error in procedure, unless, aft- for the purchase of the automobile upon er the court shall be of opinion that the error which he had paid $625 of plaintiff's money; complained of resulted in a miscarriage of jus-that said assignment was made without contice, where an attorney, defendant in an action, was represented by an attorney of record who conducted the case until defendant desired to cross-examine a witness, which leave was refused him because it appeared that he would testify in his own behalf, the action of the court, if erroneous, was not reversible error.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. 1170.] 6. TRUSTS 373-CONSTRUCTIVE TRUSTSSUIT TO ENFORCE-EFFECT OF FINDING.

sideration and after knowledge by said Linney that said automobile had been purchased with plaintiff's money and funds as aforesaid"; that the automobile is in the possession of Holt and Linney. In addition to general relief asked, the prayer of the complaint, so far as appellant is concerned, is that plaintiff be declared the owner of said contract and automobile to the extent of the application of plaintiff's money in the purchase thereof so made by Holt.

In an action to impress a constructive trust upon a contract of sale of an automobile on the installment plan, the court's finding that when the assignee of the contract presented the assignment to the seller, it recognized and approved the same in writing, whereupon the assignee paid the installment due, and that thereafter the seller with knowledge that the money paid it by the purchaser was plaintiff's money, attempted car charged with such lien.

The court, among other things, found that plaintiff was entitled to an equitable lien upon the automobile to the extent of $625 so invested therein, and that Linney held the Judgment fol

to rescind the contract, was sufficient to nega-lowed, from which, and an order denying tive the allegation of the answer that the as- his motion for a new trial, Linney appeals. signee purchased the automobile from the com

pany by an independent contract after it had

repudiated the assigned contract.

[Ed. Note.-For other cases, see Trusts, Cent. Dig. §§ 604-606; Dec. Dig. 373.]

[1, 2] Appellant's first contention is that

the complaint (to which no demurrer was interposed) fails to state facts sufficient to constitute a cause of action against him. 7. TRUSTS 372 CONSTRUCTIVE TRUST This for two reasons: First, it is not allegSUBTERFUGE IN SALE-SUFFICIENCY OF EVI-ed that title to the automobile passed to Holt, but that he merely held a contract in the form of a lease for its purchase. ground is assigned for this contention, and

DENCE.

In an action to impress a constructive trust on a contract of sale of an automobile on the installment plan, evidence held sufficient to show

No

we perceive no reason why, in a proper case, | baker Company by an independent contract a trust might not be impressed upon a con- after it had repudiated the contract made tract or lease, as well as upon other property. with Holt and which he had assigned to LinSecond, it is claimed the complaint fails to ney. As to this the court, in effect, found show that prior to Linney's acquiring the that upon Linney presenting the assignment automobile and contract of purchase he had to the company it, in writing, recognized and knowledge of plaintiff's rights therein. In approved the assignment; whereupon Linney the absence of a special demurrer, we think paid the installments thereon then due; that the allegation that the assignment was made thereafter the company, having knowledge to him by Holt without consideration and that the $625 paid to it by Holt was plain"after knowledge by said Linney that said tiff's money, and after the assignment made automobile had been purchased with plain- to Linney with its approval, attempted to tiff's money and funds as aforesaid," was a rescind the contract after Holt had assignsufficient showing of the fact. The words "as ed the same to Linney who had, by reason of aforesaid" refer to the fraudulent acts of said assignment, paid the arrearage. The Holt by means whereof he obtained the mon- finding is sufficient to negative the allegation ey and invested it in the automobile, all of made in the answer. which, it is alleged, was known to Linney.

[7] Appellant attacks as being without sup[3] It is next claimed that the judgment is port a number of findings based upon and in not supported by the findings, in that it ap- accordance with facts, which the evidence peared that after Linney acquired the con- and fair inferences to be drawn therefrom tract upon which Holt had paid the $625, tended to prove. The evidence tends to eshe paid thereon $260, and the judgment ac-tablish the fact that appellant, when he accorded plaintiff a lien thereon for her $625 quired the assignment from Holt, knew the which was declared prior to any rights of manner in which the latter had obtained Linney by reason of the $260 so paid by him. plaintiff's money, and knew that he had Since Linney took the contract with knowl-wrongfully and in violation of the trust reedge of plaintiff's rights thereunder, his posi- posed in him invested $625 thereof in the tion as to money loaned or paid thereon must automobile, upon which there were some inbe deemed that of a second lienor, just as if stallments due and unpaid. Linney, accomhe had a second mortgage on the property! panied by Holt, went to the office of the Stu[4, 5] Defendant Linney appeared in court debaker Company, the seller of the car, by an attorney of record, who conducted his where the assignment of the contract was case to a point in the proceedings where de- made, Linney stating that he desired to get fendant Linney proposed to cross-examine the car the possession of which it appears one of plaintiff's witnesses; whereupon, it Holt had theretofore delivered to the comappearing that he would be a witness in his pany. Upon the making of the assignment own behalf, the court denied him the right to and Linney paying the installments then due cross-examine the witness. Thereupon his and unpaid, the company indorsed thereon, attorney of record continued the conduct of "We, the Studebaker Company, consent to the case, cross-examining the witness. It is the assignment, and fully release Mr. Holt claimed this was reversible error. Had ap- hereunder," signed by William J. La Casse, pellant had no attorney of record represent- sales manager, and thereupon delivered the ing him, no doubt exists as to his right to automobile to Linney. Several days afterappear in propria persona and conduct his wards, all the parties ignoring this comcase, and notwithstanding the incidental in- pleted transaction, made a new deal which convenience, he could also have appeared as purported to cancel the contract so assigned a witness. But where a party appears in by Holt to Linney and pursuant to which court as a litigant represented by an attorney of record, the court may insist that such attorney and not his client, appearing as a party litigant only, conduct the trial. Boca, etc., R. R. Co. v. Superior Court, 150 Cal. 153, 88 Pac. 718. Indeed, courts have not infrequently insisted that where more than one attorney appears, one only shall conduct the examination of witnesses. But, however this may be, and conceding the ruling was error, it is impossible to perceive how defendant was prejudiced thereby, and hence it may be disposed of by applying thereto the provisions of section 42, article 6 of the Constitution.

the company had delivered the car to Linney, and a new contract was made direct with Linney which, so far as it concerned the amount, terms, and conditions, was identical with the terms and conditions contained in the contract made with Holt and by him assigned to Linney. The company recognized the existence of its contract with Holt and his right to assign the contract, pursuant to which it delivered the car to Linney and released Holt from further liability thereon. The court was justified, under all the circumstances, in its conclusion that this was a mere subterfuge.

The judgment, which appears to be a right[6] There is no merit in the contention that eous one, and the order denying appellant's the court failed to find upon an issue ten-motion for a new trial are affirmed.

dered by the answer, to the effect that appellant purchased the auto from the Stude

We concur: CONREY, P. J.; JAMES, J.